Baskerville v. SMITH

Filing 28

Order Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Appeal not certified to be taken in good faith. Signed by Chief Judge Barbara B. Crabb on 2/2/10. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

W A L L A C E BASKERVILLE, P e ti ti o n e r , v. JU D Y SMITH, Warden, O s hk osh Correctional Institution, R espo nd ent. OR DER 0 9 - cv -4 2 6 - b b c

W a llace Baskerville has filed a notice of appeal from this court's January 12, 2010 o rd er and judgment dismissing his habeas corpus petition. In the January 12 order, I found th at petitioner was not entitled to a certificate of appealability. The only question presently before the court is whether petitioner should be allowed to proceed in forma pauperis on ap peal. (I presume from petitioner's failure to pay the $455 appellate filing and docketing fee that he is seeking such permission.) A lth ou gh petitioner has not provided this court with a six-month trust account statem en t from the institution or otherwise proved that he lacks the funds to pay the filing fee, it is not necessary to reach that question. A prisoner can proceed in forma pauperis on appeal only if the court finds that his appeal is taken in good faith, that is, that reasonable p eo p le could suppose the appeal has some merit. Walker v. O'Brien, 216 F.3d 626, 631-32 (7 th Cir. 2000). I am unable to find in this case that petitioner's appeal is taken in good

faith. He received all the relief he was due on his double jeopardy claim when the circuit cou rt dismissed his aggravated battery conviction, he lacks any colorable excuse for his f ailu re to petition the Wisconsin Supreme Court to review the court of appeals' adverse decision on his other claims and he lacks evidence to prove his claim of actual innocence. U nd er these circumstances, no reasonable person would suppose there is any merit to his pursuing this matter further.

OR DER IT IS ORDERED that petitioner Wallace Baskerville's motion to proceed in forma pauperis on appeal is DENIED because I certify that his appeal is not taken in good faith. If petitioner wishes to appeal this decision, he must follow the procedure set out in Fed. R. Ap p. P. 24(a)(5). E n tered this 2 n d day of February, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

2